Garcia v. Holder, No. 07-72516 (9th Cir. Dec. 30, 2009).

This court has jurisdiction pursuant to 8 U.S.C. § 1252 to review the BIA’s order dismissing the petitioner’s appeal from an IJ’s removal order and denying his application for voluntary departure. This court reviews de novo questions of law and claims of due process violations in immigration proceedings.

The BIA properly concluded that the peititoner is removable under 8 U.S.C. § 1227(a)(1)(A) because the record of conviction establishes that his 1995 conviction for violating California Health & Safety Code Section 11366.5 related to a federally defined controlled substance and he was therefore inadmissable at the time of his 1999 entry.

The petitioner’s contention that California Health & Safety Code Section 11366.5 lacks the requisite mens rea to qualify as a crime relating to a controlled substance is unavailing. To the extent the petitioner contends that he lacked the requisite mens rea for conviction, this court cannot collaterally reexamine his conviction in this instant case.

The petitioner’s statutory eligibility for voluntary departure was a question of law which the BIA is permitted by regulation to review de novo. Therefore, the petitioner’s contention that BIA’s sua sponte vacatur of the IJ’s grant of voluntary departure violated due process is unpersuasive.

The BIA erred in holding that the petitioner’s conviction under California Health & Safety Code Section 11366.5 was categorically an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B). Not all the behavior prohibited by Section 11366.5 would constitute a violation of 21 U.S.C. § 856(a)-(b). First, 21 U.S.C. § 856(a)(1) requires that the owner personally intend to engage in prohibited drug manufacturing, distribution, or usage, while Section 11366.5 requires only that the owner knowingly permit others who have such intent to engage in drug-related activity on the property. Second, although 21 U.S.C. § 856(a)(2) and Section 11366.5 are similar, they differ in that the mens rea requirement for the former is “knowingly and intentionally” while the mens rea requirement for the latter is only “knowingly.” This court cannot read the explicit mens rea requirement of “intentionally” out of the statute. Under accepted canons of statutory interpretation, this court must interpret statutes as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous. Because the BIA did not reach any other basis for characterizing the petitioner’s conviction as an aggravated felony, this court remands for the BIA to reconsider the petitioner’s request for voluntary departure. The petition for review is therefore denied in part, granted in part, and the case is remanded.